011012FA305.03+318.03.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
FIRST APPEAL NO.305/2003
APPELLANT:
United India Insurance Company Limited, Branch at Akola,
through its Divisional Manager, Old Cotton Market, Akola,
Tq and Dist. Akola [Original respondent no.2 on R.A.
VERSUS
RESPONDENTS:
1] Sou Meharunisa Sk. Mehboob aged about 42 years, occ :
Household
2] Sk. Mehboob Sk. Reheman, aged about 47 years,
occupation : labour work
Respondents no.1 to 2 residents of Satkabad, behind P.S.
Telhara, tq. Telhara, District : Akola.
[original claimants on R.A.]
3] Sharad @ Pintu s/o Kishore Chopade, aged about 22 years,
r/o Indira Awas, Telhara, Tq. Telhara, dist. Akola.
4] Gopal s/o Satyanarayan Agrawal, at and post Dahigaon, Tq.
Telhara, dist. Akola
[original respondents no.1 & 2 on R.A.]
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Mr. S.N. Dhanagare, advocate for appellant
Mr. Bharat Vora, advocate for respondent no.1 & 2.
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WITH
FIRST APPEAL NO.318/2003
APPELLANT:
United India Insurance Company Limited, Branch at Akola,
through its Divisional Manager, Old Cotton Market, Akola,
tq and Dist. Akola [original respondent on.3 on R.A.]
VERSUS
RESPONDENTS:
1] Sau. Safiyabi wd/o Isaf Shah, aged about 30 years, occ :
household work
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2] Mustak Shah Isaf Shah, aged about 11 years, Minor occ :
education
3] Ashpak Shah Isaf Shaha, aged 9 years, minor, occ:
education
4] Shabiya Shaha Isaf Shaha, aged 7 years, Minor occ:
Education
5] Naushad Shaha Isaf Shaha, aged 6 years, minor, occ:
Education
6] Sakinabi wd/o Ajim Shaha, aged about 62 years, occ : Nil
Respondents no.2 to 5 being minor represented by Natural
Guardian Mother - Safiyabi wd/o Isaf Shaha - Respondent
no.1
[Original applicants on R.A.]
7] Sharad @ Pintu s/o Kishore Chopade, aged about 22 years,
r/o India Awas, Telhara, Tq Telhara, Distt. Akola
8] Gopal s/o Satyanarayan Agrawal, at and post Dahigaon Tq.
Telhara, dist. Akola.
[Sr. No. 7 & 8 original respondent no.1 & 2 on R.A.]
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Mr. S.N. Dhanagare, advocate for appellant
Mr. Bharat Vora, advocate for respondent no.1 & 2.
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CORAM: M.N. GILANI, J.
DATE: 1/10/2012 ORAL JUDGMENT.
1] Both these appeals arise out of the judgments and awards dated 1.2.2003 passed in M.A.C.P. No.8/2001 and M.A.C.P. 7/2001, however, arising out of same accident occurred on 26.8.2000 involving the Matador MH 30/A 9238. 2] In M.A.C.P. No.7/2001 widow, minor children and ::: Downloaded on - 09/06/2013 19:12:21 ::: 011012FA305.03+318.03.odt 3 mother of the deceased claimed compensation of Rs.3,50,000/-. In M.A.C.P. 8/2001 parents of the deceased claimed compensation of Rs.2,70,000/-. The learned Tribunal held that because of rash and negligent driving of the offending vehicle, accident occurred. After considering the age and income of the deceased in M.A.C.P.
No.7/2001 compensation of Rs.1,97,000/- was awarded, whereas, in Claim Petition No.8/2001, compensation of Rs.84,200/- was awarded.
3] Both these appeals have been filed by the insurer on the ground that there was breach of terms of insurance policy. Mr. Dhanagare, learned counsel appearing for the appellant contended that matador - the offending vehicle was a goods carriage vehicle, as such deceased in both the cases were not covered under the insurance policy.
4] In Claim Petition No.7/2001 evidence was given to the effect that the deceased was working as a labourer and on the day of incident, he had gone to load bananas in the ill-fated vehicle. In the cross-examination the witness again reiterated that deceased was doing labour work mainly of loading bananas in the truck.
5] In Claim Petition No.8/2001 the mother of the deceased entered the witness box and deposed that on the date of accident deceased had worked as labourer on the offending vehicle. Although, she has been cross-examined at length no ::: Downloaded on - 09/06/2013 19:12:21 ::: 011012FA305.03+318.03.odt 4 suggestion was put to her that deceased was not working as a coolie on the offending vehicle. On the contrary the witness reiterated that deceased was working as labourer/ coolie on the truck carrying bananas. This being state of evidence in both the petitions, the Tribunal was justified in holding that the deceased was travelling in an offending vehicle in the capacity of coolie / labourers.
6] On behalf of the appellants - Madhukar Borkar was examined. He produced on record the policy of insurance. In cross-examination he admitted that liability of insurance company is unlimited subject to conditions in the policy. Exhibit 47 is the policy. It shows that the liability of fair paying passengers and liability towards the person employed in connection with the operation and / or loading - unloading of the vehicle, was also covered.
7] The learned Tribunal while referring to the evidence of Madhukar Borkar and after considering the terms and conditions of the policy observed thus:
"However, in cross-examination he is admitting that as per the policy, the risk of Insurance Company is unlimited and even labourers and collies are covered by the Insurance policy as per the conditions of policy, but added that such persons are covered, if the vehicle is used in the ::: Downloaded on - 09/06/2013 19:12:21 ::: 011012FA305.03+318.03.odt 5 city area. However, during arguments, no such clause in the insurance policy restricting the use of vehicle in the city area is pointed out to me nor I could lay my hands on it in the insurance policy as well as its terms and conditions filed at Ex-47. On the contrary, bare perusal of insurance policy shows that apart from premium of Rs.2597/- on 'own damage basis'. The owner of vehicle i.e. respondent no.2 had also paid additional premium of Rs.3042/-
for covering the risk of non fare paying passengers, for passengers employed in connection with operation and / or loading unloading of motor vehicle etc. The conditions in the insurance policy and particularly IMT 13 and IMT 14 reveal covering of the risk of Charterer or the representative of Charterer of the truck, any other person not being carried for hire or reward and any other person directly connected with the journey etc. In the present case, the deceased along with others was travelling in that vehicle for loading Bananas in that goods carriage. Hence the Insurance company can not be absolved from the liability to pay the compensation to claimants."
8] Above conclusion rendered by the Tribunal is supported by ::: Downloaded on - 09/06/2013 19:12:21 ::: 011012FA305.03+318.03.odt 6 the material placed on record. I therefore, find no merit in these appeals.
They are dismissed accordingly with no order as to costs.
JUDGE SMP.
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